Cesena v. Du Page County

• Decision Date: 17 August 1990
• Docket Number: No. 2-89-0867,2-89-0867
• Citation: 201 Ill.App.3d 96,558 N.E.2d 1378,146 Ill.Dec. 1044
• Parties: , 146 Ill.Dec. 1044, 59 USLW 2211 Marisu CESENA, Adm'r of the Estate of Timothy J. Golden, Deceased, Plaintiff-Appellee, v. DU PAGE COUNTY et al., Defendants (Jeffrey B. Fawell, Contemnor-Appellant).
• Court: United States Appellate Court of Illinois

Page 1378

558 N.E.2d 1378

201 Ill.App.3d 96, 146 Ill.Dec. 1044,

59 USLW 2211

Marisu CESENA, Adm'r of the Estate of Timothy J. Golden Deceased, Plaintiff-Appellee, v. DU PAGE COUNTY et al., Defendants (Jeffrey B. Fawell Contemnor-Appellant).

No. 2-89-0867.

Appellate Court of Illinois,

Second District.

Aug. 17, 1990.

Rehearing Denied Sept. 14, 1990.

Fawell & Fawell, Jeffrey B. Fawell, Bruce R. Fawell, Wheaton, George P. Lynch (argued), George Patrick Lynch, Ltd ., Chicago, for Jeffrey B. Fawell.

Corboy & Demetrio, P.C., Robert J. Bingle (argued), Philip H. Corboy, Thomas A. Demetrio, Chicago, for Marisu Cesena Adm. Estate.

James E. Ryan, Du Page County State's Atty., Anna B. Harkins, Asst. State's Atty., Wheaton, for Du Page County, Sheriff Du Page County and Mitchell Paine.

Jenner & Block, Thomas P. Sullivan, Jenner & Block, Thomas S. O'Neill, Chicago, for amicus curiae Committee Nat. Ass'n.

Anderson, Deitsch & Associates, P.C., Robert J. Anderson, Wheaton, for amicus curiae Du Page County Bar Assoc., Du Page Assoc. Women Lawyers.

Dennis A. Rendleman, Illinois State Bar Assoc., Springfield, for amicus curiae Illinois State Bar Ass'n.

Ronald W. Sadowski, Oak Brook, for John Doe.

Justice INGLIS delivered the opinion of the court:

Contemnor, Jeffrey Fawell, appeals from an order of the circuit court of Du Page County finding him in contempt of court and imposing a $1,000 fine for each day that he refuses to comply with a court order. Fawell contends that he should not be required to comply with the court order because to do so would result in disclosure of information which the attorney-client privilege protects. We note here that Fawell's position is supported by amici curiae briefs of the Illinois State Bar Association (ISBA), the Du Page County Bar Association, and the Du Page Association of Women Lawyers.

This case arose as a result of a traffic accident on September 28, 1987. At approximately 10:35 p.m. that night, Fawell received a telephone call from his law partner informing him that a potential client (John Doe) wished to consult with him regarding an emergency matter. Around 12:15 a.m. on September 29, 1987, Fawell arrived at his law office and met with John Doe. Shortly thereafter, Fawell and John Doe went to the Du Page County sheriff's office to file a report pursuant to section 11-401(b) of the Illinois Vehicle Code (Code) (Ill.Rev.Stat.1987, ch. 95 1/2, par. 11-401(b)). However, the sheriff's deputy refused to accept a report, and no report was ever made in this case.

Thereafter, a grand jury investigation was commenced with respect to Fawell's representation of John Doe, and a subpoena was issued upon Fawell to testify regarding his representation of John Doe. Fawell filed a motion to quash the subpoena.

On October 28, 1987, a hearing was held on Fawell's motion to quash the subpoena. Fawell testified that he and his client went to the sheriff's office to file a report pursuant to the Code. Fawell stated that he walked up to a "window" and began to read a prepared written statement to Deputy Paine but was stopped and told to give the written statement to Paine. Fawell handed the report to Deputy Paine, who, after reading where the accident occurred, informed Fawell that the report had to be submitted to the Illinois State Police department because the accident occurred on the tollway (I-88). Fawell informed Paine that it was proper to file the report at the sheriff's office and that he was under a time constraint because the report had to be made within three hours of the accident. Paine then told Fawell that he had 48 hours to file the report and again stated that it must be done at the Illinois State Police department office in Oak Brook. After further discussion, Fawell and his client left the sheriff's department. At no time did Fawell reveal his client's name to Deputy Paine.

Fawell further testified that he received a telephone call from an Illinois State Police officer requesting his client's name, but Fawell refused to disclose the information. Two Du Page County assistant State's Attorneys made similar requests, but Fawell continued to refuse to identify his client.

On cross-examination, Fawell testified that he called the State Police department after the sheriff's office refused to accept the report, but only did so for "humanitarian" reasons. Fawell was not aware that the automobile accident at issue in this case involved a fatality when he went to file the report at the sheriff's office.

Deputy James Paine of the Du Page County sheriff's department testified that he spoke with Fawell on the night in question and agreed that he told Fawell to report the accident to the Illinois State Police department. Paine stated that he never saw Fawell's client and that Fawell never tendered a written report to him, although Fawell did begin to read the report to him.

On cross-examination, Paine denied telling Fawell that he had 48 hours to file the report. He did admit, however, that he could have accepted the report instead of directing Fawell to the Illinois State Police department. Paine also agreed that Fawell's client could have been with Fawell at the sheriff's office but that he did not see him.

On November 6, 1987, the trial court granted Fawell's motion to quash the grand jury subpoena. Judge Nelligan reasoned that an attorney-client relationship existed between Fawell and John Doe, and, although the client's identity was generally not privileged information, it was privileged in this instance because the client's identity "would provide the necessary link to the State to institute a prosecution for a serious felony offense against the client."

On September 28, 1988, plaintiff, Marisu Cesena, as administrator of the estate of Timothy Golden, filed the lawsuit now before us naming Du Page County, the sheriff of Du Page County, and Mitchell Paine as defendants. The complaint alleged that Timothy Golden was killed when he was hit by an automobile while he was walking on I-88. It further alleged that defendants were negligent in that they failed to obtain the relevant information concerning the accident, including the identity of the driver of the automobile (John Doe).

On March 10, 1989, Fawell refused to answer certain questions asked at his deposition relating to John Doe's identity. Thereafter, plaintiff made a motion pursuant to Supreme Court Rule 219(a) (107 Ill.2d R. 219(a)) to compel Fawell to answer the questions. On August 22, 1989, following numerous continuances, the trial court heard arguments on the motion to compel. On August 28, 1989, Judge Peccarelli ordered Fawell to answer four questions and continued the case to the following day. The four questions were:

"Would you please state to me the name and address of the individual that you met with on the evening of September 28, early morning hours of September 28th, 1987?

* * * * * *

Did that individual at that time inform you as to an incident in which he had been involved in on I-88 that evening?

* * * * * *

What did you tell him [Deputy Paine] with reference to the location?

* * * * * *

Did you ever view the automobile that this individual was driving on the night of September the 28th, 1987?"

On August 29, 1989, Fawell informed the court that he would not answer the questions that he was ordered to answer. Fawell's motion to reconsider was denied, and the court subsequently found Fawell in direct civil contempt of court. Fawell was fined $1,000 per day and ordered incarcerated until he answered the questions. Fawell was released on his own recognizance, and the enforcement of the order was stayed until September 5, 1989.

On August 29, 1989, Justice Woodward granted Fawell's emergency motion requesting a stay of the trial court's order. The order effectively stayed the trial court's order until August 30, 1989. On August 30, 1989, Justice Woodward continued the stay until September 8, 1989.

On September 7, 1989, this court denied Fawell's emergency motion to stay the trial court's order pending appeal. On September 8, 1989, the Illinois Supreme Court granted Fawell's request to stay the appellate court order until further order of the court. On September 14, 1989, the supreme court granted Fawell a stay of the trial court's order pending appeal. This appeal followed.

Initially, we must determine whether Fawell and John Doe had established an attorney-client relationship before we decide if the questions involved in this case solicited privileged information. The attorney-client privilege is recognized as one of "the oldest of the privileges for confidential communications known to the common law." (Upjohn Co. v. United States (1981), 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584, 591; 8 Wigmore, Evidence, § 2290 (McNaughton rev. 1961); see Hazard, An Historical Perspective on the Attorney-Client Privilege, 66 Calif.L.Rev. 1061, 1071 (1978).) The attorney-client privilege exists to enable a person to consult freely and openly with an attorney without any fear of compelled disclosure of the information communicated. (People v. Adam (1972), 51 Ill.2d 46, 48, 280 N.E.2d 205, cert. denied (1972), 409 U.S. 948, 93 S.Ct. 289, 34 L.Ed.2d 218; Knief v. Sotos (1989), 181 Ill.App.3d 959, 964, 130 Ill.Dec. 503, 537 N.E.2d 832.) The privilege has been described as being essential "to the proper functioning of our adversary system of justice." (United States v. Zolin (1989), 491 U.S. 554, 109 S.Ct. 2619, 2626, 105 L.Ed.2d 469, 485.) The essentials of the creation of the attorney-client privilege have been defined as follows:

" '(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.' " Adam, 51 Ill.2d at...